Equality Bill

[back to previous text]

The Solicitor-General: I want to make it very clear that those three are synonyms. It is not about one including the two; it is about all three meaning the same.
Mr. Harper: I listened very carefully to the Minister’s comments and to the intervention of the hon. Member for Oxford, West and Abingdon. It is perfectly sensible for the explanatory notes to explain the legal terminology in plain English. I do not know how many Committee members have ploughed through both parts of the Bill, but, to be perfectly frank, the words “crisp” and “contemporary” did not leap out at me as I went through the 200 or so clauses. It is a perfectly good Bill, but crisp and contemporary it is not. It uses much language, such as “protected characteristic”, that one does not generally hear down the pub. Unless, of course, the Solicitor-General’s local pubs are different from those in the Forest of Dean.
The Solicitor-General: Probably not.
Mr. Harper: We have some wonderful pubs in the Forest of Dean, and the hon. and learned Lady is always welcome to come and sample them to boost our tourism industry. [Interruption.] I acknowledge her reciprocal invitation. I am not convinced by the Minister’s argument, however, which I do not think was a very good one, so I would like to test the Committee’s opinion.
Question put, That the amendment be made.
The Committee divided: Ayes 8, Noes 10.
Division No. 2]
Baron, Mr. John
Boswell, Mr. Tim
Featherstone, Lynne
Harper, Mr. Mark
Harris, Dr. Evan
Howell, John
Mason, John
Penrose, John
Abbott, Ms Diane
Baird, Vera
Brown, Lyn
Drew, Mr. David
Foster, Michael Jabez (Hastings and Rye)
Griffith, Nia
Hesford, Stephen
Osborne, Sandra
Sheridan, Jim
Thornberry, Emily
Question accordingly negatived.
Lynne Featherstone: I beg to move amendment 130, in clause 13, page 9, line 5, leave out ‘a’ and insert ‘one or more than one’.
An amendment to permit claims of direct discrimination and harassment on multiple form of discrimination.
The Chairman: With this it will be convenient to discuss amendment 131, in clause 24, page 17, line 18, leave out ‘a’ and insert ‘one or more than one’.
An amendment to permit claims of direct discrimination and harassment on multiple form of discrimination.
Lynne Featherstone: The amendment would permit a claim of direct discrimination and harassment for multiple forms of discrimination. I know that the Government are consulting on the matter but, interestingly, the consultation document prompts this question: on what principle of justice or fairness should new legislation aimed at fairness deliberately exclude protection against discrimination based on a combination of two or more characteristics, discrimination against which are individually prohibited, because it would be burdensome to business? The key is that justice is not about whether business finds something burdensome to act equitably. The purpose of the measure must be justice.
The business community has concerns about the increase in litigation, because there could be multiple bites of the discrimination cherry. It is concerned that that would increase settlement costs and that it would be cheaper to settle than to go to court. Under the Bill, cases of direct discrimination and harassment on multiple forms of discrimination are not outlawed, but we think they ought to be, and the Government are consulting on the issue. However, all organisations seem to think that such a measure is necessary, so I do not understand the need to consult again.
My reading of the situation is that the Government believe that combining two protective characteristics would be adequate, because it would cover most claims, but that might result in permitting combinations of more protective characteristics. In response to the “Discrimination Law Review” consultation, public concern that the current law does not adequately protect those who experience multiple discrimination was identified. I am sure the Minister can think of many such examples.
If we amended the wording from “a” to
“one or more than one”,
a claimant would be able to bring the appropriate claim for discrimination on more than one ground, and on any number of grounds that were deemed appropriate. We need to give voice to that now, because we do not believe that we need to wait for consultation. There has already been two years’ consultation on this.
Mr. Harper: I shall be very brief. Having listened to the evidence, I believe that the hon. Lady is slightly wrong in the way in which she characterises what the Government have done. I read their written statement and their consultation document. They acknowledged that a great deal of the feedback to the “Discrimination Law Review” said that there should be a multiple discrimination provision, as the hon. Lady says. That is why they made a proposal enabling claims that combine two protected characteristics in the consultation document. I read both the written statement and the discussion document that the Government published in April and thought that they made a great deal of sense. We will obviously look carefully at the specific legislative proposals that the Government introduce.
During the evidence-taking session, there was a discussion about whether combining two characteristics made sense, or whether more were needed. There was general agreement that it should be possible to combine two, but there was not much evidence of cases where two would not enable the protection. There did not seem to be much evidence to support having more than two characteristics, given the complexity involved and the benefits that would be derived.
Given the fact that the law should be based on dealing with real, identified problems, the proposal to bring in multiple discrimination on two protected characteristics seems to be the right one. If, in future cases, there are many situations involving more grounds, which the Government’s proposal would not solve, the matter could be looked at again. From the evidence that we heard in Committee, the Government’s approach seems sensible. The hon. Lady’s amendment would insert “more than one”, implying that all the protected characteristics could be brought together, and regrettably, we are not able to support it.
Lynne Featherstone: I thank the hon. Gentleman for those remarks. This is a question of striking the right balance. I believe that the law would not become more complex because that complexity is already there as a consequence of the existence of the strands. Intersectional cases would become less complex, because the law would sit more naturally and suit the facts. Again, the fact that something is more complex or burdensome should not be the guiding line as to how many strands, protective characteristics or multiple discriminations are allowable. However, I take the hon. Gentleman’s point.
Mr. Harper: That is important, because the Bill is not just about what the law says, but about what happens in reality. Part of the benefit of bringing different pieces of discrimination law together in a more straightforward Bill, is that protection will not be offered only by the law. The reality on the ground will be that all those organisations that have to behave in accordance with the law—such as those providing goods or services, or employers—will find it easy to understand. The problem with making something complex, particularly if it is disproportionate to the wrong that we are trying to solve, is that in making it more complex, it becomes more difficult. There might be a purer basis in law, which we would all be happy with, but in practice, it might more difficult to deliver the rights and protections that are so important for the people we are trying to look after.
Lynne Featherstone: I suspect that the Government are not going to accept the amendment, and I will withdraw it after the Minister has responded. We need to work on that balance. [Interruption.] Sorry?
The Solicitor-General: Why not withdraw it now?
Lynne Featherstone: I would like to hear what the Minister has to say in response.
The Solicitor-General: The amendment would have the effect of allowing claims of direct discrimination and harassment to combine in an unlimited number of any or all protected characteristics. The great mathematicians advising me have worked out that covering all the possible combinations would give 511 possible combinations of action, which not surprisingly, is rather a worry for business. It would be highly complex, most people would find it excessively burdensome, and it would leave individuals wondering where and how on earth they could exercise their rights in the face of such a lot of possible combinations.
We recently published a document. There was a good deal of discussion in the earlier review, as the hon. Member for Forest of Dean has said, and the intention of the new document, “Equality Bill: Assessing the impact of a multiple discrimination provision” was exactly as expressed in its title. A clause in the document limits it to two grounds. The point was to ask a specific question of a particular business and other interested parties about what the impact of the clause on that limited number of grounds would be, so as to provide a some clear understanding about the l scope of the measure.
4.45 pm
In short, the hon. Lady’s proposal would be unduly complex and excessively burdensome and, since she has let the cat out of the bag by saying that she is going to withdraw it, I shall not add any more detail. However, our discussion document closed for responses last Friday. We are looking at the feedback we have received and, once we have done so, we will make a decision about whether protection from multiple discrimination, as set out in our document, can be effective, workable and proportionate. If it can, we will introduce it.
Mr. Harper: On timing, will the Minister confirm whether it is subject to the question of how long it takes to go through those responses? Do the Government intend to table an amendment to the Bill on Report in the Commons, or wait until it goes to the other place? On a procedural point, I think it would be better to allow the elected House to consider it first, if that is possible within the timing.
The Solicitor-General: Yes, it is our ambition to do it here—ideally while the Committee is still sitting. I am not sure whether we will manage that or not, but we want to do it here if it is to be done.
Lynne Featherstone: I listened carefully to the Minister and thank her for her response. Regardless of whether or not I withdraw the amendment, it is important to have her thoughts on the matter on the record. It is a matter of judgment and I accept the Minister’s view that the best way forward is to look at the combination of two of the strands. I also welcome the fact that the Commons, rather than the Lords, will be able to scrutinise the measure so, for now, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
John Penrose (Weston-super-Mare) (Con): I beg to move amendment 194, in clause 13, page 9, line 6, at end insert—
‘(1A) Discrimination does not include marketing or promoting activities targeted at a particular group of people whether or not they share a protected characteristic.’.
It is a pleasure to have my first opportunity to make a contribution under your chairwomanship, Lady Winterton.
The Chairman: Chairmanship.
John Penrose: I stand corrected. Amendment 194 states that discrimination does not include marketing or promoting activities targeted at a particular group of people, whether or not they share a protected characteristic. It is tabled primarily to elicit some reassurance from the Minister that routine, perfectly normal and perfectly lawful business activities will remain as such.
I am sure the Minister is well aware that it is standard business practice to segment markets, and to target particular groups on the basis of sound business principles. I hope that she will reassure us that that can continue and that there will be no question, in the future, of subjecting businesses’ marketing plans to rigorous legal scrutiny. They have not required that scrutiny in the past.
There are two issues: one is market targeting, the other is limiting access to a product or service. The second one is different and is deliberately not part of the amendment—that is something for separate discussion later. There are, however, many companies whose business models could be cast into doubt if we do not clarify this proposal. There could be all sorts of dangerous and worrying implications if we do not nail this down.
Mr. Boswell: Does my hon. Friend agree that one of the difficulties is that any discrimination likely to be alleged will probably be indirect? For instance, a marketing programme might not necessarily be expressed as only for the over-70s, or whatever, but in practice it might well add up to that as a result of careful market segmentation. People would then say, “Ah, this is discrimination.”
John Penrose: My hon. Friend has summed it up neatly—we tabled the amendment for that reason, and to give the Minister a chance to allay any fears among investors, management and staff in many companies up and down the country. There are many examples. We have heard evidence and submissions from companies such as Saga, which specialises in marketing to, and providing holidays for, people above a certain age. Club 18-30 self-evidently targets its products at the other age range, and Sheilas’ Wheels markets insurance to women drivers, as well as a series of other people. Those companies have particular market aims and are targeting their advertising at certain segments of the market. I am not sure, but it is entirely possible there are holiday companies which market their products and aim their promotional activities at Muslims wishing to go on the Hajj. Those companies would be legitimate and we would not want to stop them. In my constituency of Weston-super-Mare, there is a hotel which specialises in holidays and respite for disabled people and their carers. Clearly, everybody would want that to be perfectly legitimate and allowable in future.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2009
Prepared 17 June 2009